Fail to be negligent

No lawyer is immune from claims for negligence. For estates and trusts practitioners, these claims can arise from issues such as the failure to ensure that a testator’s wishes are accurately reflected in his/her will, to neglecting to confirm that the testator had the requisite capacity to execute a will or was not subject to undue influence when providing instructions. This article provides a general overview of the current law of solicitor’s negligence with a focus on how negligence claims can be prevented in an estates and trusts practice.

Pilotte v Gilbert, Wright & Kirby, Barristers & Solicitors sets out the current test for solicitor’s negligence. In that case, the court held that for a lawyer to be found liable for negligence, it must be shown that the lawyer’s “error or ignorance was such that an ordinarily competent solicitor would not have made or shown it.” (at paragraph 34)

There are three elements that must be established for a lawyer to be negligent:

1. The source of the liability for negligence (i.e. the duty of care). The liability of a solicitor is a concurrent liability in contract, tort, and equity;
2. Whether the lawyer met the standard of care. The standard of care is not perfection, but rather that of a “reasonably competent solicitor”; and
3. Whether the plaintiff has proven that the lawyer’s misconduct caused the client’s loss such that the client suffered damages.

With regards to the source of liability/standard of care, it has been established that a drafting solicitor not only owes a duty of care to his/her client (the testator), but also to the intended beneficiaries of the testator’s estate.

To determine whether an error of judgment or ignorance of the law was outside of the sphere of what an ordinarily competent lawyer would have done, Justice Riley in Millican v Tiffin Holdings Ltd. (confirmed by the Supreme Court of Canada in 1967) outlined the following obligations that a lawyer must undertake:

1. To be skilful and careful;
2. To advise the client on all matters relevant to the retainer, so far as may be reasonably necessary; and
3. To protect the interests of the client.

The notion of causation is an essential element of any negligence analysis. Specifically, the general test for causation is the “but for” test, which must be proven by the plaintiff on a balance of probabilities. The plaintiff must show that the injury would not have occurred “but for” the negligence of the lawyer. In an action for solicitor’s negligence in an estates case, the plaintiff must demonstrate, for example, that if properly advised, the testator would have acted in a different manner and whatever damages suffered by the estate beneficiaries would have been avoided.

Being aware of your duty to your client and the intended estate beneficiaries is the first step in avoiding a claim for negligence. Below is a list of some best practice tips that will also help you avoid future litigation:

Communicate with your clients, keep them informed of legal options and obligations:

• Provide clients with regular updates, even if there is nothing to report
• Don’t rely solely on email – call or meet with a client to discuss or review more complex matters
• Manage client’s expectations – provide a realistic assessment of risk and/or costs involved
• Have a clear retainer agreement – include what steps you will (and will not) be taking

Educate yourself on your area of law and keep current on new developments:

• Get to know the relevant statutes
• Familiarize yourself with related areas of law – enough to flag issues and refer client for expert opinions (ex. taxes)
• Be careful with delegation and supervision of work – the client is relying on your expertise
• Be cautious when taking on files outside your regular area of practice – ask for assistance or refer clients to an expert when appropriate

Investigate the client’s circumstances and needs:

• Understand your client: What are her needs, concerns, and desired outcome? What legal issues is she facing?
• Make time to fully investigate the background of a matter – probe your client for details and supporting documents
• Obtain and review relevant records (for example, title searches)
• The investigation stage will be unique to each area of law – create a checklist, if possible

Document every step of the file:

• Keep detailed docket entries
• Confirm client instructions in writing – this also gives the client the opportunity to alert you to any misunderstanding
• Be clear in your communications with opposing counsel and/or third parties

These are just a few duties and obligations to keep in mind to maintain an effective practice for both you and your client.

Note: This article originally appeared on the OBA’s Wills, Estates and Trusts Section website. It is reprinted with permission from the author. It has been lightly edited for style and length.